Cairns Regional Council v Carey [2012] QCATA 150

CITATION: Cairns Regional Council v Carey [2012] QCATA 150 PARTIES: Cairns Regional Council (Applicant/Appellant) v David George Carey (Respondent) APPLICATION NUMBER: APL087-11 MATTER TYPE: Appeals HEARING DATE: 18 July 2012 HEARD AT: Brisbane DECISION OF: Hon James Thomas AM QC, Member Clare Endicott, Senior Member DELIVERED ON: 21 August 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is allowed to the extent that the amount which the Cairns Regional Council is ordered to pay to the complainant, David Carey is reduced to $322,033.061; 2. The order of the tribunal in ADC032-09 dated 21 January 2011 is in all other respects confirmed; 3. All questions of costs of and incidental to this appeal are reserved for consideration by this appeal tribunal in APL294-11. CATCHWORDS: Anti-discrimination – claim on basis of political activity (s 7(j)) – claim on basis of association with another person identified on basis of political belief (s 7(p)) - Shire manager dismissed – whether basis was personal animosity or political animosity – when several reasons why manager was dismissed – whether substantial reason for dismissal was manager’s political activity – meaning of 1 Decision amended by order of the Tribunal on 22 November 2012. -- 1 of 26 -- 2 discrimination on the basis of political belief or activity Anti-Discrimination Act 1991, ss 7(j), 7(p), 8, 10(1), 10(4) Queensland Civil and Administrative Tribunal Act 2009, s 147 APPEARANCES and REPRESENTATION APPLICANT: Cairns Regional Council was represented by Mr R Perry SC and Mr T Bradley of counsel RESPONDENT: David George Carey was represented by Mr D Rangiah SC REASONS FOR DECISION Proceedings [1] This is an appeal to the Appeal Tribunal of QCAT against a decision by a primary Tribunal exercising jurisdiction under the Anti-Discrimination Act 1991 (“the ADA”). [2] The original proceeding was brought by the respondent, Mr Carey, against the Cairns Regional Council on the basis that he had been unlawfully discriminated against by the Douglas Shire Council in March 2008, shortly before the amalgamation which constituted the Cairns Regional Council as its successor. [3] Mr Carey succeeded in his claim in the primary Tribunal. The learned Member found that the termination of his employment was made on the basis of his political belief or activity in contravention of section 7(j) and/or his association with another person under 7(p) of the ADA. He ordered the appellant Council to pay Mr Carey $368,033.06 as compensation for the contravention. [4] Mr Carey’s original proceedings were against both the appellant Council and the four Councillors of the former Douglas Shire Council who had voted in favour of the termination of his contract of employment. The learned Tribunal Member declined to hold the individual Councillors liable, essentially on the basis that section 240 of the Local Government Act 2009 exempted them from liability for acts or omissions done honestly and without negligence, and on the further basis that section 102 of the Anti- Discrimination Act 1991 exempts local government “members” from liability for political discrimination. The Council however was not similarly protected. [5] A separate appeal was brought by Mr Carey against the dismissal of his claim against the Councillors, but it was later withdrawn. -- 2 of 26 -- 3 [6] There is also a pending appeal (APL294-11) brought by the Council against the Member’s determination that the costs of Mr Carey’s claim should be paid by the Council. [7] Leave to appeal has been granted and the present proceeding is an appeal under section 147 of the Queensland Civil and Administrative Tribunal Act 2009 on questions of mixed fact and law, and is to be decided by way of rehearing on the evidence given before the primary tribunal. The approach we are bound to take to the primary tribunal’s findings and inferences on factual issues is stated in a line of decisions including Warren v Coombs2 and Fox v Percy3. [8] The present appeal challenges the learned Member’s findings of liability against the Council and the quantum of the compensation awarded. Legislative basis of claim [9] Section 7 of the Anti-Discrimination Act 1991 provides: 7 Discrimination on the basis of certain attributes prohibited The Act prohibits discrimination on the basis of the following attributes— … (j) political belief or activity; … (p) association with, or relation to, a person identified on the basis of any of the above attributes. [10] Section 8 defines the expression “on the basis of an attribute” inclusively, as follows: 8 Meaning of discrimination on the basis of an attribute Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of— (a) a characteristic that a person with any of the attributes generally has; or (b) a characteristic that is often imputed to a person with any of the attributes; or (c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or (d) an attribute that a person had, even if the person did not have it at the time of the discrimination. [11] Section 15 of the Anti-Discrimination Act 1991 provides: 15 Discrimination in work area (1) A person must not discriminate— … (c) in dismissing a worker; or … 2 (1979) 142 CLR 531. 3 [2003] 214 CLR 118, especially paras [23] to [31] and [87]. -- 3 of 26 -- 4 [12] The Act prohibits both direct and indirect discrimination (section 9). Direct discrimination is defined as follows: 10 Meaning of direct discrimination (1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different. … (4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment. … [13] Proof of the elements of section 10 is often difficult.4 In the present case neither counsel raised the question whether Mr Carey was treated less favourably than another person without the attribute would have been treated. Both submitted that the true issue in the present case is whether the councillors’ decision to terminate was based on their perception of political belief or activity on the part of Mr Carey or his de facto wife Ms Allen. That strong personal animosity existed towards him on the part of the four Councillors who voted for his dismissal is not now in doubt. The real question is whether the dismissal was the product of political animosity, that is to say animosity based on his or Ms Allen’s political beliefs or activities, or whether it was merely the product of personal animosity that was not politically based. That question of course is to be answered having regard to the prevailing relatively narrow interpretation of the term “political belief or activity” in the Anti-Discrimination Act 1991. [14] The approach taken by counsel is that but for the animosity there would have been no dismissal, and it should follow that in the case of another employee if such animosity were lacking, that employee would not have been dismissed. If there is a finding that the cause of the dismissal was the councillors’ perception of political activity on the part of Mr Carey or Ms Allen they submit that the necessary result under section 10 will follow. This however assumes that the animosity was either all political or all personal, whereas the evidence suggests that some of the animosity was the product of activity by Mr Carey and was arguably political while some of it was not. These submissions therefore do not precisely address the issues in the statutory terms. That however was the way in which the case was conducted, and in which counsel addressed the issue in their submissions to us. Ultimately, it will be necessary for us to return to consider the issue in terms of the statute, with particular regard to section 10(4) of the ADA. [15] The claimant’s case is based upon the councillors’ alleged perception5 of political activity6 on the part of Mr Carey, and their alleged perception of 4 E.g. Purvis v State of New South Wales (2003) 217 CLR 92. 5 Under s 8(c). 6 Under s 7(j). -- 4 of 26 -- 5 his association with Ms Allen7 who was identified by them as a person holding certain political beliefs and engaging in certain political activities. We foreshadow that there is not much doubt about the probability of the Councillors having identified Ms Allen as a person with objectionable political beliefs and activities, but the live question here is whether Mr Carey’s association with her was a substantial factor in their decision to terminate his employment. [16] The only part of section 8 referred to by counsel was subsection (c). In theory the other sub paragraphs of that section might be used in assessing the attitude of the Councillors towards Ms Allen, but we agree that for practical purposes section 8(c) identifies the relevant route for consideration of the application of the Act so far as it concerns any activity of Mr Carey. [17] Broadly speaking, the main questions to be addressed are whether the councillors discriminated against Mr Carey on the basis of political activity that he was presumed to have engaged in; and/or on the basis of his association with Ms Allen; and whether these factors (individually or in combination) were a substantial reason for the termination. Findings of fact by Member [18] During a four-day hearing the activities of the Douglas Shire Council and the interactions of its councillors from 2004 2008 were explored in some depth. The learned Member discussed the evidence in the case (from paras 17 to 64 of the reasons for judgment), laying out the respective contentions of the parties in relation to particular episodes and events. Unfortunately in a few critical areas it is not entirely clear what the Member’s own actual findings were. There are also occasional grammatical errors that raise doubts or ambiguity. [19] Four of the grounds raised by the appellant counsel are critical of the learned Member’s factual findings and inferences, the first two of which allege error in his characterisation of certain actions and reasons as “political”. In further oral submissions, Mr Perry SC contended that the Member on a number of occasions, without justification inserted the epithet “political” into the description of an activity, contrary to current authorities concerning the nature of “political belief or activity” that the ADA is designed to protect. [20] It will therefore be necessary to set out the facts which we understand to be established by the evidence, upon which the ultimate question concerning whether prohibited discrimination has been proven can be addressed and answered. Apart from specifically challenged findings (discussed hereunder) or areas where it is doubtful what the Member found, we have adopted the Member’s primary findings of fact, but after due consideration we have formed our own views on the inferences that should be drawn from them, consistently with the principles applicable in 7 Under s 7(p). -- 5 of 26 -- 6 appeals by way of rehearing on the record of proceedings before a primary tribunal8. Relevant facts [21] In 2004 the voters in the Douglas Shire elected seven Councillors who comprised the Douglas Shire Council. They consisted of Michael Berwick (the Mayor), the four Councillors who were made respondents in the discrimination claim (David Egan, George Pitt, William Bellero and Joseph Sciacca), and two other Councillors (Roderick Davis and Belinda Cox). [22] They held office and directed the affairs of the Council until “change over day” (15 March 2008) when the Queensland Government enforced the amalgamation of the Douglas Shire Council into a new larger body known as the Cairns Regional Council. [23] The operation of the Council at material times was widely recognised as “dysfunctional”. There were no doubt many causes of this, but the main problem seemed to be ongoing bickering between the councillors, and inability to reach agreement on any new plan that was required for the district. [24] Mr Carey was appointed to the position of “General Manager Community and Corporate Services” on 7 November 2005 pursuant to a contract dated 27 September 2005. [25] The “termination” clause in the contract (clause 9.1) specified various ways in which termination might be peremptorily effected9, including failure to meet specified performance measures, or dismissal without notice for specified serious misconduct. Clause 9.1.6 then provided: 9.1.6 The Chief Executive Officer (with Council approval) may terminate the contract for any reason other than those specified in Sub- clauses 9.1.1, 9.1.3, 9.1.4 and 9.1.5 provided the Chief Executive Officer shall give six (6) months notice or, in the absence of notice, the payment in lieu thereof of all salary and benefits as thought the notice period had been worked. Alternatively, in cases where the contract expires within six (6) months the Council shall pay to the employee all salary and 13 benefits calculated as if the employee has worked the balance of the contract.‖ (CAC67, RAC13) [26] Thus, no cause needed to be assigned for Mr Carey’s dismissal, and his compensation for dismissal under that clause was limited to six months salary and benefits. [27] The Chief Executive Officer at the time of the election was Terry Melchert. His period of service was noteworthy for his conflict with the Mayor and public discontent as to the performance of the Council. In contrast to his conflict with Mayor Berwick he had a friendly relationship with the four 8 Fox v Percy (above) at paras [25]-[27], [87]; Warren v Coombes (above) at 551. 9 Sub-clauses 9.1.1, 9.1.3, 9.1.4 and 9.1.5. -- 6 of 26 -- 7 respondent Councillors, particularly Pitt and Bellero. He actively socialised with the respondents and assisted them to write resolutions and reports, and as the learned Member found, “in other ways”.10 [28] In contrast to their friendly and protective attitude towards the Council’s CEO Melchert, the respondents perceived Mr Carey as aligned with the Mayor. [29] The inability of the Council to function in a normal manner resulted in a series of official investigations and reports on identifying the problems and attempting to remedy the situation. Some of these reports were strongly critical of Mr Melchert and his performance. [30] Finally, in early February 2007, the Minister for Local Government intervened and issued a notice to the Council to show cause why it should not be dissolved. [31] On this occasion the Council, in a rare expression of unanimity, quickly agreed upon a “22 point plan” designed to address the concerns expressed by the Minister. A key part of the response was a resolution by the Council “to terminate the current Chief Executive Officer in the event the performance management panel does not recommend to Council his continued employment…”11 [32] The management panel subsequently found that Mr Melchert did not satisfy the key performance indicators and it did not recommend his continued employment. [33] The Mayor quickly advised Mr Melchert that his position was terminated in accordance with the resolution. Following this the respondent Councillors made several attempts to restore Mr Melchert to his former position but these were all unsuccessful. [34] At least as early as December 2007 the four respondent Councillors formed an intention to terminate Mr Carey’s employment. A strong motivating factor, and probably the main factor in their decision to do so, was revenge for what they perceived to have been Mr Carey’s role in facilitating the dismissal of their friend Mr Melchert. [35] On 20 December 2007 the respondent Councillors made an unsuccessful attempt to effect the dismissal of Mr Carey. On that occasion Mr Pitt moved and Mr Sciacca seconded a motion that “dependent on the required notice, that Mr Carey be terminated consistent with his employment contract”. The four respondents voted in favour of the motion whilst Mayor Berwick and Ms Cox voted against. The other Councillor (Davis) was absent. The motion however was not given effect to because legal advice was received from the Council’s solicitor that the motion had not been included in the agenda for business that day, and all Councillors 10 Member’s reasons for judgment para [57]. 11 Record pages 1193-1199, at 1194. -- 7 of 26 -- 8 were not present and in unanimous agreement to consider such a resolution without notice.12 [36] Subsequently, in January 2008, Mr Carey endeavoured to delete clause 9.1.6 from the contract without reference to the Council. He and the then Acting-CEO of the Council (Ms Leu) agreed to delete that clause. However upon discovery of this manoeuvre, the Community and Corporate Standing Committee of the Council resolved that the alteration was unauthorised and illegal, and that “such clause be reinserted into the contract”. On that occasion the mayor and Ms Cox voted against the resolution but it was carried on the vote of the four respondent Councillors. [37] The termination of Mr Carey’s employment was eventually effected at a meeting of the Community and Corporate Standing Committee of the Council held on 4 March 2008. All seven Councillors were present, but Mr Carey was absent on sick leave and did not attend. [38] Mr Pitt moved “that the Committee agrees to terminate the contract of the General Manager Community and Corporate, David Carey, pursuant to clause 9.1.6 of the contract”. [39] In the course of lengthy discussion which ensued, the Mayor requested that a reason for the determination be given, but none was forthcoming. A motion to delay the decision was lost and eventually the termination motion was carried, with the four respondent Councillors voting in favour and the other three voting against. [40] The letter written by the acting Chief Executive Officer notifying Mr Carey of his termination was in the following terms: “Termination of Contract of Employment I wish to formally advise you, that the Community & Corporate Standing Committee of Council resolved at this (sic) meeting of the 4th March 2008 to terminate your contract of employment with Council, pursuant to clause 9.1.6 of that contract. The committee gave no reason for this action. Arrangements are being made for the processing of your termination payment, and we will contact you regarding this matter. Whilst, I have only known you for a short period of time, I can say that I have found the work you have undertaken to be of a very high standard, and as fulfilling the requirements relating to the performance under the contract. In closing, I wish you all the best for the future.” [41] The Mayor’s statement following the carrying of the motion included an acknowledgement that “you have a legal right to terminate the contract but the implications are huge and may well be personal and will certainly lead 12 See Member’s findings paras 21 and 52. -- 8 of 26 -- 9 the new Council with a major liability”. He pointed out that no reason had been given, and that “there is no moral or ethical basis for your actions. It appears to be driven by pure vindictiveness”. He expressed the view that Mr Carey had been a “very productive member of the staff” that he had had no “warnings or any of the things that you would normally do before you dismiss someone”. The mayor concluded with the observation that, “this Council is just continuing on its path of self destruction that it started some time ago and it is rather sad at the last meeting that we would have something as appalling as this to finish the term”.13 [42] A major point of defence in the litigation before the learned Member was that the main basis of the respondent Councillors’ decision to dismiss Mr Carey was their dissatisfaction with his work performance. Their concerns, it was claimed, included his lack of impartiality when performing his functions, his lack of expertise and experience, his management of staff, and his conduct in attempting to amend his own contract or employment. [43] However at the close of the complainant’s case, they elected not to call any evidence and did not expose themselves to cross examination as to their real intentions and motives in procuring the termination of Mr Carey’s employment. We do not find it necessary to discuss this aspect of the case at any length. While there is certainly evidence supporting the probability of their holding the view that he was not impartial in a number of respects, and that his attempt to unilaterally amend the contract was discreditable, we entirely agree with the following conclusions of the learned Member – “Without referring to any specific incidents, which might have been capable of reflecting upon the skills and performance of the complainant in the eyes of the respondents, it seems to me that there is little, if any evidence to suggest that any of these issues were in fact, or even might have been occupying the mind of the respondents, or any of them at the time the decision was made to terminate.”14 and “But in the end, and independently of the question of what in truth occurred in relation to the enterprise agreement, the workplace health and safety issue, the amendment of the complainant’s contract of employment and the issues concerning the changes to the draft minutes, the changed email distribution lists, the making of insurance claims by the Mayor and the presentation of a petition against the former CEO, I find that there is no evidence whatsoever to support the contention that any or all of these issues were the driving force or indeed a relevant consideration standing behind the decision by the respondents to cause the complainant’s employment to be terminated. No witness gave evidence which supported the view that, at any time, contemporaneous with that termination, the 13 Appeal record pages 673, 682. 14 Members reasons for judgment para 38. -- 9 of 26 -- 10 respondents, or any of them, were genuinely motivated to terminate him for any of those reasons.”15 [44] We will attempt to summarise what the evidence suggests to be the main reasons for the termination. [45] It may be foreshadowed that these principally involved perceptions on the part of the Councillors that Mr Carey was generally an ally of the mayor, that he supported the mayor in the removal of Mr Melchert, and that his partner Ms Allen was an active environmentalist critical of them and supportive of the Mayor. [46] It may also be foreshadowed that revenge for the dismissal of Mr Melchert was the dominant basis of the decision. Relationship with the mayor [47] There is some basis for thinking that they saw Mr Carey as helping the Mayor more than he was helping them, and that he was generally on the Mayor’s side. Indeed the learned Member acknowledged16 that there as “some support” for the view that they saw him in this way. However he followed this with an important sentence which lacks a verb. It is: “On the evidence before me, however, I am not satisfied that the respondents’ determination of the complainant’s employment because of a perceived political affiliation with Mr Berwick on planning and environmental issues.” Counsel are agreed that the verb “was” should be inserted between “employment” and “because”. [48] The importance of this finding, with which we agree, is that it excludes from consideration the most obviously “political” area of any perceived alignment with the Mayor. Resentment over day to day administrative matters obviously would not generally be regarded as resentment on the basis of political activity. These considerations however will be later discussed in more detail. It is enough for present purposes to say that once the planning and environmental issues are excluded the main area of friction between the Councillors and Mayor Berwick was their running feud over the retention or dismissal of the CEO Melchert. No other issue can be identified as arguably "political". Nothing is raised that goes beyond personal disagreement on day to day administrative matters. [49] The learned Member’s findings concerning the issue of the continued employment or dismissal of Mr Melchert are contained in paras 56-61, and we will quote a portion of this: ―[56] … Mr Berwick gave evidence, which I accept, that in the last four year term of the Council Mr Berwick had a serious falling out with his 15 Members reasons for judgment para 43. 16 In para 55 of his reasons. -- 10 of 26 -- 11 CEO, Mr Melchert. Mr Berwick formed the view that there had been serious problems with the way in which Mr Melchert had been discharging his responsibilities and when the Mayor sought to do something about this, Mr Melchert responded by accusing him of bullying. They fell out over the Mayor’s insistence that he take a period of stress leave and there was obviously a level of animosity which developed between them for a range of reasons. Mr Berwick formed the view that Mr Melchert was acting in a partisan way in the performance of his duties, primarily in providing active support for the respondent councillors in their various disputes within Council with Mr Berwick and his supporters. In the Kellar report of 31 August 2006, it was noted that there was a division of opinion on key issues pertaining to the continued employment of the CEO, with the report noting that, in the case of the Council’s relationship with the CEO, the majority, i.e. the respondents here, tended to demonstrate solidarity. [57] Mr Berwick gave evidence that, for example, Mr Melchert attempted to prevent him from obtaining administrative help whilst dealing with the Crime and Misconduct Commission, and in responding to a defamation case which had been brought against him. On the other hand, Mr Melchert actively socialised with the respondents, and assisted them to write resolutions and reports and in other ways.‖ [50] The circumstances of the intervention by the local government Minister, the Councillors’ 22 point plan to stave it off, the consequential termination of Mr Melchert’s employment, the consequential resentment of the Councillors and their termination of Mr Carey’s employment in response are then mentioned. [51] Counsel for the appellant Council, Mr Perry SC, submitted that it was unreasonable for the learned Member to rely on the evidence of Councillor Davis, who attributed various statements to the respondent Councillors. He was obviously a partisan witness, and the learned Member clearly recognised this. He referred to such evidence as follows: ―[63] There is some other evidence which tends to support the view that this was an act of political retribution. That was evidence given by another councillor, Mr Davis, of a conversation had with the second respondent in late January 2008, a few months before the dismissal. His evidence by affidavit was that when he asked Mr Egan whether their attempts to terminate the complainant were ―revenge for Terry‖ (referring to Mr Melchert), Egan replied ―yes you got our guy so now we are going to get yours‖. [52] Having regard to the ensuing paragraph of those reasons, it seems that despite his candid reservations about the witness, the learned Member did find that there were surrounding circumstances which made this particular statement credible, and that it was accepted by the learned Member as having been made, although he did not in explicit terms say so. However, in the absence of any sworn denial by any of the respondents of such statements having been made, and in the circumstances described, we do not discern any error in the acceptance of that evidence. -- 11 of 26 -- 12 [53] In this area the evidence is very clear. The dismissal of Mr Melchert was plainly the trigger for the subsequent attempts to dismiss Mr Carey. It inspired a desire for vengeance and a determination that he in turn should be dismissed. The learned Member’s findings on this point include the following: ―[60] Although Mr Carey was not the person who was appointed to replace Mr Melchert as the CEO, he had an active role in the Council and probably because of the relationship he had with Ms Allen, and as seen by the respondent councillors, as they put it, in an alliance with Mr Berwick and could be seen as a person to whom the respondents could direct an act of political retribution for the loss of their ally Mr Melchert. They could do nothing about Mr Berwick or Ms Allen. And after 15 March 2008 their tenure as councillors would have ended. So with 11 days to go, they terminated him, even though they would have had no further association with him as a Council officer after those 11 days. Relationship with Ms Allen [54] During the final year of his service Mr Carey was in a de facto relationship with Ms Allen, who was a vocal critic of the four respondent Councillors, and was seen as an ally of the Mayor and as an active environmentalist. The extent of her activities is detailed in paragraphs [46]-[51] of the learned Member’s reasons for judgment and need not be repeated here. They reveal a degree of disapproval on the part of the respondent Councillors of Ms Allen’s actions and comments, and in particular of what they perceived to be her support and assistance to their adversary the Mayor. [55] Some but not all of the respondent Councillors made public criticism of Ms Allen. There is however little if any direct evidence of transference of that resentment to Mr Carey by reason of his known association with her during 2007. [56] In the passage quoted above at para [51], in the context of discussion between the Councillors and the Mayor dealing with the question of dissension with the Mayor over the dismissal of Mr Melchert, the learned Member twice made mention of Ms Allen. It is not completely clear whether these references were part of a discussion of possible views of the evidence or intended as an actual finding of fact in that Mr Carey’s relationship with Ms Allen was a basis of the dismissal. Counsel for Mr Carey, Mr Rangiah SC submitted that it should be taken as a finding of fact, and referred to later discussion of Ms Allen’s role in para 74 of the reasons for judgment, contending that the combination of paras 60 and 74 should be taken as a finding to that effect. Para 74 states: [74] Similarly, it seems to me that the complainant’s de facto partner held political beliefs and engaged in political activity in that sense and her public opposition to the policy preferences of the respondent councillors, in her strident support of certain environmental groups and her published statements about the way in which obtaining in -- 12 of 26 -- 13 environmental matters ought be dealt with by the Council. Less obvious is her opposition, on the grounds of his political support for the respondents, or his principal less favourable approach to planning environmental matters, her lack of support, indeed opposition to the continuing tenure of the former Chief Executive Officer Mr Melchert. Again, if the termination of the complainant’s employment was because of his association with his de facto partner, and the relevant aspect of that association was the holding by her of those political beliefs or engaging by her in that political activity, then his termination was unlawful, and in contravention of sections 7(j) and (p). [57] This clearly enough contains a finding that Ms Allen engaged in political activity. Indeed there was never any real doubt that she did. But on the critical issue of whether determination was because of Mr Carey’s association with her, the reasons are once again expressed entirely hypothetically. [58] There is however a finding concerning animosity towards Mr Carey by reason of his association with Ms Allen in the following passage at para 53 of the reasons: ―Not all of the respondents made public criticisms of Ms Allen, and her support for the Mayor or on other issues about which they differed, but it is reasonable to infer that by the end of 2007, they had developed significant animosity toward Ms Allen and the complainant by reason of her relationship with him, apart from any feeling they had about him for any other reason.‖ [59] It may also be inferred from the ultimate finding of liability under section 7(p) of the ADA that the learned Member must have regarded the association with Ms Allen as being a cause of the dismissal. [60] It is our duty sitting in appeal to give due respect to the findings of fact and inferences drawn by the primary Tribunal, but it is also our duty to draw our own inferences and be prepared to act upon them. In the end we have a number of difficulties with the findings which have been made on these points. We note that in any event there was no adversion to the extent to which the association with Ms Allen may have contributed to the actual decision to dismiss. In these areas it is unwise to speculate on what may have been intended by the learned Member. We think that we should examine the evidence and come to our own conclusions on these questions, and will deal with them further under "Discussion” below. [61] We foreshadow that we think it reasonable to infer that the association with Ms Allen was probably an aggravating factor, but it would appear to be relatively insignificant in comparison to the precipitating cause, a “get square” for Melchert’s dismissal. Legal considerations [62] The main legal issue in these proceedings concerns the meaning of discrimination on the basis of political belief or activity. -- 13 of 26 -- 14 [63] The learned Member referred to all three of the decisions in the Queensland Anti-Discrimination Tribunal in which this question had arisen. We will however concentrate upon the main decisions where this question has fallen for judicial consideration in the superior courts of Australia. [64] We were referred to four cases where this point has arisen, each before a single Justice of a Supreme Court. Remarks made by these Justices have been applied in many decisions by anti-discrimination tribunals throughout Australia. [65] The relevant terms, political belief and political activity, are not defined in the Act. [66] We accept that the ADA legislation, which was the result of a coordinated exercise in legislation in both the states and the Commonwealth, is regarded as remedial legislation and is to be construed beneficially. We also accept that so far as its language permits, the Act is to be construed in conformity with the established rules of international law, and that the meaning of statutory provisions implementing a convention may be ascertained by reference to the relevant provisions of that convention.17 [67] The ADA implements the International Convention on Civil and Political Rights (the ICCPR). Article 26 of that Convention includes the following: ―All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.‖ [68] The ADA also implements the International Labour Organisation, “Discrimination (Employment and Occupation) Convention 1958”. It defines, “discrimination” in article 1 as: ―Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing quality of opportunity or treatment in employment or occupation;‖ [69] We have mentioned these background details to place the legislation in context, and because that background underlies the judicial decisions that have laid the basis of interpretation of the terms in question. The legislation in Australia, including that in Queensland, contains anti- discrimination laws framed in such a way as to suggest that a discriminator commits a personal wrong against a victim, akin to a tort. There is an individual complaints procedure and a system of assessment of compensation for the wrongdoing. 17 Koowarta v Bjelke Petersen (1982) 153 CLR 168, 264-265. -- 14 of 26 -- 15 [70] As the words “political belief or activity” are undefined, one must search for their ordinary meaning. [71] The Macquarie Dictionary (5th Edition) indicates that the word “political” has many shades of meaning. ―Adjective a. relating to or dealing with the science or art of politics: political writers. b. of or relating to the governing of a nation, state, municipality, etc.: political measures. c. exercising or seeking a power in the government or public affairs of a nation, state, municipality, or the like: a political party d. related to or connecting with a political party, or its principles, aims, activities etc.: a political campaign. e. affecting or involving the state of government: a political offence. f. engaged in or connected with civil administration: political office. g. having a definite policy or system of government ; a political community. h. of or relating to citizens: political rights. i. Colloquial interested in politics: Sheila is not political. – politically, adverb Political animal / noun a person, often a politician, whose whole life involves the interpersonal strategies and operational tactics commonly believed to be essential for political success.” [72] In popular usage the meaning stated in the "political animal" example is widespread, and is often used to refer to acts that involve engagement in forms of manipulative trickery. Indeed, the Shorter Oxford English dictionary (SOED) includes: 4. Belonging to or taking a side in politics; in a bad sense, partisan, factious 1769. [73] It may be stated immediately at this shade of meaning is not the type of belief or activity that is protected by the anti-discrimination legislation. [74] The term “political activity” was in issue in Nestle v Equal Opportunity Board18 which came before the Supreme Court of Victoria (Vincent J). That case was decided under the Equal Opportunity Act 1995 (Vic), which uses similar terms, though in a different framework. 18 1990 VR 805. -- 15 of 26 -- 16 [75] Nestle involved the dismissal of a number of employees who had been active during an industrial dispute. Among the acts said to have been the basis of the dismissals were their outspokenness and activity in seeking improved conditions, speaking up at union meetings, being a shop steward and being on picket lines. The question was whether such activities were capable of showing the holding of a “political belief” or the engaging in of “political activities”. [76] Vincent J held that the term “political” in such legislation was concerned with the processes of government and not, in general, the structures and interactions of industrial relations. [77] His Honour recognised that trade union activities possess characteristics to which in one sense the epithet “political” may properly be applied, but observed: “However there relationships normally under consideration in such analyses are those which can be seen to bear upon the rights which exist between ordinary members of the society concerned and the individuals or groups which control its government. Attempts to so combine may have many times been regarded, as the history of a number of different parts of the world clearly demonstrates, as political activities. On the other hand it is correct, I think, to state that generally speaking in our society, at least at the present time, where the existence of this right is not in issue, its exercise is not necessarily so characterised.”19 His Honour concluded: “The legislation was clearly not intended, in my view, to encompass behaviour of the kind in which the plaintiff in the present case is alleged to have engaged. I find it very difficult to accept the proposition that the legislature intended by the use of the words ―political belief‖ to bypass the entire body of law and the structure which have been established at both the Federal and State level to deal with the type of purely industrial relations questions which have arisen in the present matter. These considerations reinforce my opinion that the term ―political‖ should be given the meaning ascribed to it by common usage which is concerned with the process of Government and, not in general, the structure and interactions of industrial relations.” [78] The activities in question, in his Honour’s view, ―appear to relate solely to the activities of the complainants with respect to matters affecting the terms and conditions under which employees of the plaintiff were engaged or required to perform their duties. In other words on their face they are concerned with an allegation of discrimination by reason of involvement in the industrial activities of a trade union rather than any political activities in which it had or might engage”. [79] In CPS Management v Equal Opportunity Board20 two employees claimed that their contracts had been terminated because they had provided 19 Nestle above at 815. 20 [1991] 2 VR 107. -- 16 of 26 -- 17 adverse information against their employer during an audit by the VARC (a governmental body overseeing rehabilitation services). One claimant contended that he was sacked ―for my political belief that the administration of public money ought to be ethical, responsible and regulated‖ and the other that he was dismissed ―due to my strongly held and publicly stated socio-political belief and total commitment to the principle that the administration and application of public monies ought to be ethically and responsibly regulated, with full public accountability to the responsible government bodies‖. [80] Marks J held that this did not involve a holding of any political belief or the engaging in any political activity. His Honour agreed with the approach of Vincent J in Nestle, adding that: It can be safely said that a requisite qualifying characteristic is that the belief or activity is one which bears on government. This means that a belief is not political where it has no bearing on the form, role, structure, feature, purpose, obligations, duties or some other aspect of government.‖ His Honour considered that if belief in the need for honesty in the handling of public money were considered to be political ―it would make little sense of the legislation and give it a reach unlikely to have been intended. In my opinion the definition … is to be understood in the context of the Act to refer to beliefs of a political kind which differ in kind from beliefs which underpin the existing social structure, such as beliefs in honesty, an assumption on which our social structures including government are erected.‖21 [81] His Honour noted there was no description of activities which could properly be characterised “putting pressure upon the government‖. By implication, if they had done so the threshold might have been crossed. [82] In La Roche v President and Members of the Equal Opportunity Board22 Gobbo J noted the decisions of Vincent J and Marks J, and expressly agreed with Vincent J’s formulation in Nestle. In La Roche’s case the “political activity” which it was alleged lead to discrimination against an applicant for appointment as an Ambulance Officer, was said to be his prior submissions to various government enquiries about the Ambulance Service and his public involvement in attempts at reforming that service. These he said were “known political activities” as they were in the public arena and the ultimate control of the service was vested in the Minister. Criticisms of the service and attempts to reform it including written submissions to various government enquiries, ought to be taken, he submitted, as political. [83] Gobbo J considered that these factors were not sufficiently connected with government to be considered political. In his view “the seeking of reform of the Ambulance Service does not sufficiently involve the relationship 21 Ibid page 112. 22 (1991) EOC para 92-361, page 78,473. -- 17 of 26 -- 18 between ordinary people and those that the control the state. While, as was contended by counsel for the applicant, the service is ultimately the control of the Minister, such activities by the applicant in my view do not sufficiently impact on the process of government. [84] His Honour further stated: ―In the Nestles case, Vincent J distinguished between those activities within the existing framework of government and those activities that are directed in some way or other to affecting its framework, altering its structure or the balance of forces, or in its competition (reference supplied). Similar observations were made by Marks J in the CPS case. In this case counsel for the service contended that the activities by the applicant were within the existing framework of government and, on that basis, could not be regarded as political. I accept that argument, for it appears clear that the making of public submissions to a government inquiry established by parliament is operating well within the existing framework of government.‖ [85] Applying Vincent J’s test, his Honour was of the view that the applicant’s claim should fail since his beliefs and/or activities neither related to nor affected the framework of government. [86] A similar narrow approach was adopted by Anderson J of the Western Australian Supreme Court in Ralph M Lee Pty Ltd v Fort23. His Honour stated: ―I do not consider there is any reason to give the word ―political‖ in this Act a wider meaning than it bears in normal usage. In my opinion a complainant alleging discrimination on the ground of his political conviction is required to show that the conviction possessed by him and shown to have been the ground for his disadvantageous treatment by the respondent, was a conviction which had to do with government – the policies of government, the structure, composition, role, obligations, purposes or activities of government.‖ [87] A number of decisions were referred to in various anti-discrimination tribunals and equal opportunity commissions which illustrate application of these tests to various fact situations. It may be useful to mention two of these. [88] In Sherman v Grady24 a resident of a community named “Sanctuary Cove” became involved in a fight over its direction and control, and in the course of this made an application for it to be heritage listed. It was held that he had indeed become involved in political activity described by the Member as ―very actively involved in trying to advance the interests of the Members of that organisation particularly surrounding the issue of the approval or otherwise by the Minister of the proposed replacement Sanctuary Cove development control by-laws … (and) ultimately, his commitment to his beliefs about how the sanctuary community should be shaped into the future lead him to be involved in the application to 23 (1991) EOC 92-357. 24 [2008] QADT 7. -- 18 of 26 -- 19 heritage list the entire Sanctuary Cove Resort precinct‖. This, he thought, ultimately “bore on government” and consequently amounted to political activity. [89] On the other hand, in Jones v Jacobs and Clark25 an enthusiastic participant in “student politics” stood for a university representative body on a ticket which indicated that he held particular beliefs and allegiances. This was not regarded as involvement in political activity, although in common parlance it could readily be said that he was “playing politics” and behaving as politicians do. Discussion [90] It will be necessary to determine the matters on which the termination was based, and then to characterise them in accordance with the authorities. [91] We do not think it would be correct to infer that animosity towards Mr Carey by reason of his association with Ms Allen was a major factor in the termination decision. It is true that after Mr Carey's dismissal acrimonious comments were exchanged between Mr Carey, Ms Allen, Mr Bellero and Mr Sciacca in which Mr Carey and Ms Allen were described as “the two of them”, but it is difficult to see their liaison had been a major factor in the termination decision. At para [58] above we have drawn attention to the Member’s findings in paragraph [53] of his reasons as we think that the statement of “significant animosity towards … the complainant by reason of (Ms Allen’s) relationship with him” somewhat overstates the position. In our view this may well have aggravated the situation, but it was far from the dominant factor. [92] The most that can be said is that it is reasonable to infer that it is likely to have been an aggravating factor in a decision driven by more direct considerations. [93] The driving influence in the relevant decision was revenge for the dismissal of their friend Mr Melchert. That dismissal was perceived by the respondent Councillors as engineered by the Mayor with Mr Carey’s support. There is no doubt that this factor was the dominant basis of the decision. [94] Mr Carey’s alliance with the Mayor included the circumstance that there was a running controversy over the continued employment of the CEO which threatened the functionality of the Council and which led to the necessity for a response from the Council to a Ministerial threat to dissolve it under s 160 of the Local Government Act. The reports and inquiries into activity of the Council include references such as “dominated by a group who tend to exercise solidarity”. These were plainly references to the four respondent Councillors and the fact that they tended to vote in a block. So far as the decision on the continued employment of a Chief Executive Officer is concerned, such a decision would not ordinarily be 25 [2004] QADT 34. -- 19 of 26 -- 20 regarded as a political issue, but in the context of the Douglas Shire Council in 2007-2008 it had become highly contentious, and “political” in the sense that the very survival of the council became dependent upon its resolution. The CEO’s relationship with the “majority of four” was a major circumstance found by the Kellar Inquiry on 31 August 2006,26 and was itself a relevant issue in contentious activity concerning the continued existence of the Council. [95] It is therefore strongly arguable that the dismissal of Mr Melchert was a true political issue in the Council. The fact that the four Councillors voted in favour of his conditional dismissal, no doubt reluctantly, and intending to prevent it happening in due course, does not alter this. Their resentment against Mr Carey over his support of the Mayor in what turned out to be a successful manoeuvre in dismissing Mr Melchert could therefore be regarded as resentment founded upon Mr Carey’s political activity. [96] This, as we have indicated, was the dominant factor in the dismissal. [97] Mr Perry SC’s first submission was that the learned Member erred in concluding that “the holding and discharge of the position, which Mr Carey held with the Council, was one which was also political activity” within the meaning of the ADA, and in concluding that the discharge of his functions was also within the category of ―political belief or activity.”27. He further submitted that the learned Member inappropriately and indiscriminately described a range of activities as "political", contrary to the approach suggested in the decided cases. [98] There is some substance in these submissions. The following passages (in para 73 of the learned Member’s reasons) in our view overstate the situation, and are difficult to reconcile with the authorities: The responsibilities of the Mayor, Mr Berwick, were demonstrably political in the sense in which that term has been referenced in the authorities. (Indeed, we think that most of his responsibilities should not be so characterised. The learned Member's observations continue) – A person, who is seen to have affiliations with such a person in the context of that political activity, participates in that narrow sense in the duties and obligations of government. That is so, not merely because of an affiliation with a person whose role is very obviously political, but because, in itself, holding and discharge of the position, which Mr Carey held with the council, was one which was also political activity in the same sense. One might in this context be seen as the political ally, or the political rival of a particular person holding political office. The affiliation or rivalry by itself, at least in a case like this, may easily be seen to fall within the definition of political belief or activity. 26 See pages 816, 819, 680 and 808 of record of proceedings. 27 See reasons for judgment para 73. -- 20 of 26 -- 21 [99] The generality of those statements is not supportable. In our view a question of fact arises in each instance, according to the nature of the particular activity that is being performed. If, for example, Mr Carey had been dismissed because he was perceived to have supported the Mayor in relation to the planning scheme which was a contentious local issue, we think that the activity would clearly have been political. However the findings of the Member exclude this as an operative factor, and we agree that such a finding is in accordance with the evidence. [100] The learned Member at no stage addressed the applicability of section 10(4) of the ADA or of the relative significance of the various factors which produced the Councillors’ animosity toward Mr Carey. In response to the approach taken by counsel a blanket approach was taken to the ultimate question, although there were arguably two or more reasons why Mr Carey was treated as he was. [101] There are a number of passages in the learned Member's reasons in which the word “political” has been used to describe an activity (eg “political payback”28, “politically aligned”29, “political ally"30, "political rival"31). These are usages of the popular extended meaning of the word and are not in accordance with the restrictive approach required by the authorities. There is therefore merit in Mr Perry's submission that the learned Member misdirected himself on this issue. [102] With due respect to the learned Member’s primary findings of fact, it is necessary for us to reconsider the principal facts and inferences of fact that should be drawn, and to endeavour to characterise them in accordance with the authorities. [103] The evidence as a whole supports the following conclusions: 1. The extent of any legitimate concerns about Mr Carey such as incompetency or misconduct was insignificant. 2. The respondent councillors perceived that Mr Carey was often an ally of the Mayor. This was the major factor in the animosity which drove the Councillors to act as they did. The issues on which this perception was based were: (a) First and foremost the dismissal of their associate, the CEO Mr Melchert; (b) Support from Mr Carey based on planning and environmental issues – this however was an insignificant factor, and was rejected by the learned Member; 28 In para [77] of the reasons. 29 In para [56] of the reasons. 30 In para [73] of the reasons. 31 In para [73] of the reasons. -- 21 of 26 -- 22 (c) Other issues of day to day administration – these are not clearly defined and not shown to have played any significant part in the decision. 3. Mr Carey’s association with Ms Allen, whose comments, and conduct they found objectionable, contributed to the overall animosity the respondent councillors felt towards Mr Carey. [104] The question is whether any of these factors should be characterised as based on political belief or activity, and whether it should be determined that the Councillors’ conduct infringed sections 7(j) and 7(p) of the ADA. The essential questions are “what was the substantial reason or reasons for the termination?” and “Should it or they be characterised as discrimination?” [105] There is no doubt that Mr Carey was dismissed for reasons extraneous to his work performance; and that he was dismissed on the basis of strong animosity on the part of the four respondent Councillors. But whether this should be characterised as substantially in respect of his “political” activity and/or his association with Ms Allen is an entirely different question. [106] Mr Perry submitted that an ideological basis was a necessary requirement of the "political belief or activity" contemplated by the ADA, citing remarks in Nestle32 and the CPS Management Case33. That submission is in our view too wide. In the first place s 7(j) provides two distinct alternatives, namely political belief and political activity. They afford separate sources of protection, and are not to be jumbled. The submission is probably correct in regard to "political belief" because the inclusion of the noun "belief" supports a connotation of something like an ideology. But "political activity" does not demand any such requirement. In the second place, the remarks of Vincent J and Marks J did not expressly or by necessary implication suggest that ideology is a necessary feature of political activity. To the contrary, the "governmental" connotation suggested by them as not need any ideological issue or goal. Such a limitation would unduly restrict the natural meaning of "political activity". The existence of an ideological goal may well help to characterise activity as political, but it is not in our view a condition precedent. [107] The present case does not raise any issue of party politics or ideology. It concerns governmental activity at the local government level. Although not recognised in the Commonwealth Constitution, local government is a long standing institution governed by state legislation and continued by means of electoral franchise. From the public point of view it is responsible for many decisions, rules and laws which impact on daily life. This said, many decisions are of an administrative kind, giving effect to existing rules, and many activities of councillors and mayors would not ordinarily be regarded as “political” unless they concerned controversial electoral issues. As earlier indicated we think that some town planning 32 See reference at para [74] above. 33 See reference in para [79] above. -- 22 of 26 -- 23 issues will clearly be of a political nature consistently with the decided cases. Likewise some environmental issues, policies of pro-development or anti-development, and perhaps issues that favour the candidacy of an elected member would be capable of involving persons in relevant political activity. Those matters however were not the subject of positive findings in the present case. [108] Generally speaking, activities and attitudes on the question of employment of staff or a CEO’s contract could not be regarded as political. However in the circumstances of the present case we think that the circumstances surrounding the dismissal of Mr Melchert became a substantial political issue within the meaning of the decided cases. They involved conduct that led to the exercise of State executive power by the Minister setting in motion the dismissal of the Council, and the Council's response thereto. Upon that question depended the very survival of the Council. [109] In the terms used by Gobbo J in La Roche’s Case34 Mr Carey's activities were capable of being seen as activities which "sufficiently impact on the process of government”; and in the terms used by Anderson J in Ralph M Lee Pty Ltd v Fort35 to describe "political conviction", the relevant activities of Mr Carey, as perceived by the respondent councillors, “had to do with government – the policies of government, the structure, composition, role, obligations, purposes or activities of government”. [110] For the above reasons, we find that (a) The respondent Councillors discriminated against Mr Carey on the basis of political activity that they presumed him to have engaged in; (b) The respondent Councillors discriminated against Mr Carey on the basis of his association with Ms Allen, a person they identified on the basis of her political belief and activity; and (c) These factors in combination were a substantial reason for the termination. [111] In fairness to the appellant Council, we indicate that if we are wrong in characterising the animosity arising out of the Melchert incident as political, we do not think that Mr Carey’s association with Ms Allen in the light of her political activity would be sufficient to justify a finding that it was a substantial reason for the dismissal. By far the main reason for the dismissal was his support for the Mayor over the dismissal of Mr Melchert and in the circumstances this was discrimination on the basis of his political activity under s 7(j) of the Act. 34 See reference at para [82] above. 35 See reference at para [86] above. -- 23 of 26 -- 24 [112] Therefore on a different footing by that found by the learned Member we consider that the primary finding of liability against the Council should be upheld. Appeal against quantum of compensation [113] Compensation was assessed by the learned Member as follows: Past economic loss $211,365.75 Interest thereon $ 21,136.00 Economic loss between 10 November 2010 and 11 March 2011 $ 26,376.00 Interest thereon $ 375.00 Future economic loss (after March 2011) $ 50,000.00 Loan costs $ 18,813.33 Past medical expenses $ 366.98 Future medical expenses $ 6,000.00 General compensation $ 30,000.00 Interest thereon $ 3,600.00 Total $368,033.06 [114] The major component in the assessment ($211,365.75) was not challenged either here or in the primary proceeding. The only items challenged on this appeal are: (a) Future loss of income after March 2011 – $50,000 (b) Future medical treatment – $6,000 (c) Compensation for hurt, embarrassment, loss of reputation, stress etc – $30,000 [115] With respect to item (a) the learned Member found that it was probable that following amalgamation the Cairns Regional Council would, but for the wrongful dismissal, have applied the Local Government Workforce Transition Code of Practice (“the Code of Practice”) which commenced in August 2007 and expired on 16 March 2011. If the Code were applied, the Council would have employed Mr Carey until the expiry of his term under his original contract, namely until 6 November 2010. [116] What would have happened after that is problematical. The learned Member described the evidence of employment opportunity at the Cairns Regional Council after that time as “completely unsatisfactory”. Mr Perry -- 24 of 26 -- 25 SC for the appellant Council pointed out that the onus to show such losses is on the claimant. He did not challenge the further allowance of $26,376.00 for the period 10 November 2010 to March 2011, which covers his prospect of employment until the expiry of the Code’s application (16 March 2011), although there is obviously considerable uncertainty about that allowance. However beyond that date he submitted that it is not shown that Mr Carey had any realistic chance of further employment by the Council. [117] Before the termination of his employment Mr Carey had applied for appointment to two positions soon to be constituted by the Council, but these were unsuccessful. He has applied for employment with 12 other local governments, and has been unsuccessful in each instance. [118] The appellant Council’s submission is that the presumed further employment of Mr Carey must be seen against the background of psychiatric problems manifested by him prior to his dismissal. These are detailed in the evidence of his psychiatrist, Dr Jetnikoff, which included obsessive personality problems more than a year before the termination of his employment, and stress related conditions which commenced in May or June 2007 and reached their maturity before the end of 2007. His adjustment disorder was present by the time of his determination. Dr Jetnikoff did not give evidence of any aggravation of Mr Carey’s adjustment disorder by the termination. [119] The appellant Council’s submission is that the allowance of a further $50,000 for future economic loss is unreasonable and excessive, and that assessment beyond the date when the Code ceased to apply (March 2011) is in the present circumstances so speculative that it should be nil. [120] Any assessment must be based on the loss of a chance to obtain an extension to his contract of employment with the appellant, and in the circumstances this would appear to have been at best very slight. The Tribunal was of course dealing with imponderables, but this specific assessment for a special item seems grossly excessive on the evidence. Our only doubt is whether there should be a nil assessment or a token allowance for the loss of a chance. In the circumstances we will allow the appeal on this item by reducing it to $10,000. [121] The assessment for future medical expenses is open to a similar criticism. When one considers that the total medical expenses proved up to the hearing date were only $366.98, and the fact that the claimant had psychiatric problems preceding the discrimination, an allowance for $6,000 for future medical expenses seems prima face excessive, at least in the absence of some evidence of the likely need for them as a result of the discriminatory conduct. Mr Carey’s own evidence suggests a belief that the termination precipitated further problems and created further needs, and his GP, Dr Stringer, supported his claims of stress and loss of confidence, but in the absence of any suggestion from the specialist in this area that the termination produced consequences that would require further medical expenses, we do not think that this claim is made out. -- 25 of 26 -- 26 Having regard to the low level of the figures involved and the absence of basis for such an award, the allowance for this item should be set aside. [122] So far as the allowance of $30,000 for general compensation is concerned, this involves a wider spectrum. The learned Member observed that the dismissal is a very public event and the subject of media coverage, although he noted that there was little evidence to suggest that Mr Carey's reputation was in fact diminished in the eyes of those who were aware of his dismissal. There is also some evidence supporting his suffering of stress and embarrassment as the result of the wrongful action of his adversaries. We agree with Mr Rangiah’s submission that an award of $30,000 was within the discretion of the Member. [123] In the result the appeal should be allowed to the extent that the award should be reduced by $46,000. The decision should be otherwise confirmed. Costs [124] Ordinarily we would dispose of the costs of the appeal in this proceeding. However, a separate appeal has been brought against the learned Member's award of costs in the original proceedings against the Council, and the question of costs of this appeal is also raised in that proceeding. [125] As we are the members appointed to determine that other proceeding it will be convenient that we consider all questions of costs, including both primary proceedings and those of the appeals, in that proceeding. We will therefore reserve the question of costs of the present proceedings for consideration in that proceeding. -- 26 of 26 --